Representing Medical Malpractice Plaintiffs

Host:

From LawHub, this is I Am The Law, a podcast where we talk with lawyers about their jobs to shed light on how they fit into the larger legal ecosystem. In this episode Mike Spivey interviews a solo practitioner who is transitioning from representing defendants to representing plaintiffs.

Mike Spivey :

Our guest today is Greg Aycock. He is a solo practitioner in Baton Rouge, Louisiana. Greg is a graduate of LSU and the Washington University School of Law in St. Louis. Prior to starting his solo practice just one year ago Greg worked for an insurance defense firm. He left because he wanted to be his own boss. Now he focuses on plaintiff's personal injury, and spends considerable time in the family law arena doing divorces and child custody work. In your ideal world what areas would you focus on more?

Greg Aycock:

I think my ideal mix would be to do a majority of the personal injury area, having that defense background, but I really love the medical aspects of cases and getting deep into the serious injuries, personal injuries, dealing with the doctors, all of the experts. I'm hoping down the road that a majority of my practice will consist of personal injury.

Mike Spivey :

So today how do you find your clients?

Greg Aycock:

A lot of clients find me, it's word of mouth and referrals, whether it be through other lawyers or friends, the Bar Association, so that's a big part is being a solo practitioner is picking up your clients on referrals and word of mouth.

Mike Spivey :

What other things would you do to grow your client base?

Greg Aycock:

Well, I recently joined a business networking group, and so I do a lot of networking outside of my practice. I'm really involved in my community. In addition, trying social media. I have a website. Just day-to-day. And biggest thing is referrals. Letting people know I'm out on my own, other attorneys I've worked with, everyone I see, it's constantly just speaking to people and handing out business cards and just letting everyone know my practice areas.

Mike Spivey :

Could you walk us through what a typical day would look like in that practice area? Sort of take us through the life cycle of a client.

Greg Aycock:

Typically once a client comes in on a personal injury case, you talk to the client, you sign them up, you take the case, you start the initial process of obtaining their medical records and getting facts and background information on the case.

A lot of times these cases can and do resolve themselves prior to filing suit because you're dealing with the insurance adjusters or some of the companies, the claims representatives for the big companies. You're negotiating, trying to resolve a case, because a lot of times some of these companies don't want to face a lawsuit. In the event that a lawsuit needs to be filed, at that point a typical day is just the day-to-day grinding out the litigation process, whether it's issuing discovery, responding to discovery, taking depositions of witnesses, defending your client through the motion process as a case gets ready for trial, whether it be a jury trial or you try it before a judge.

Mike Spivey :

I sort of envision an episode of House where you're getting into the nitty gritty of medical technologies and language, and are you learning about things you never would have imagined learning about, and are you getting really deep into sort of the medical aspects of these cases?

Greg Aycock:

No, it is, it's very interesting. Prior to going to law school I wanted to go to medical school, and then my feelings changed my senior year of high school. And now looking back, getting into the medical aspects of these cases, learning about the back injuries, the different research, it's actually pretty fun. And then to go in and depose the doctors, and a lot of the experts in their fields, I am learning all the time about different things, whether it be parts of the elbow, the back, the knee, brain injuries. It's very interesting.

Mike Spivey :

For someone who's never been, what's it like being in a courtroom and trying a case?

Greg Aycock:

Yeah, I think it takes a lot of experience to get there, but once you're comfortable, if you're comfortable getting up in front of people, I think if you know your case inside and out and you're prepared it's actually it's really fun being in a courtroom. It's like a ping pong game or a tennis match going back and forth.

Mike Spivey :

Do you have any crazy stories of the judge or the opposing counsel asking questions that you were just entirely unprepared for, and how you reacted?

Greg Aycock:

Well sometimes that happens. The main thing, all you can do is sometimes if you can object and maybe keep it out if you think it's worth keeping out, you can maybe object and get it out. A lot of times you just have to sit there and look at your clients if they're sitting next to you and try to figure out a way. If you didn't know that or you didn't know that was coming, I try to figure out a way to... If you get some cross examination or something like that to attack it.

Mike Spivey :

I imagine you get pretty close to your clients. Is it a case where you're actually having to guard your emotions because you don't want to... For some of these family law cases, I know they can be tough, I'm sure personal injury too, or is it to your advantage to get closer to the client?

Greg Aycock:

You get to know your clients very well. The ins and outs. You have to know your client because there's so much emotion involved. You have to control your client a lot and teach them the process, and explain when it's correct time for the use of emotions and all that. And you have to keep your clients under control as well, because you don't want them going out doing something, or getting angry or something on the witness stand because that could hurt their case. So it's just I guess a mind game essentially, and you're learning, and you're getting very close to your clients just so that you can present them in the best way possible.

Mike Spivey :

So we talked about the whole dynamic from the beginning to the end of these cases. Is it changed in any way because you're in Louisiana, and I know Louisiana uses civil law system, which is different from the rest of the country, does that change the whole dynamic of the representation of clients?

Greg Aycock:

Not necessarily. It's basically a set of core principles. They're codified into a system that serves as our primary source of law. We have books that are called Civil Code, and they basically have three components in those books. It's the law of persons, property law and commercial law. Louisiana is the only state based on French and Spanish codes, and ultimately Roman Law, as opposed to English Common Law that the other states use. So in essence we look at the legislative enactments, or what this legislature considers is binding for us. Whereas in the common law in every other state outside of Louisiana it's basically judge made decisional law, which gives precedential authority to prior court decision. The courts don't look to other decisions or other court decisions from other states, so I'm constantly looking basically at the laws the Louisiana legislature make and formulated my case. But it's the same in trying a case and putting a case on and presenting a case to a jury or a trial.

Mike Spivey :

Greg, you were on the defense side until recently, is insurance defense changing, and how might that impact your plaintiff's practice?

Greg Aycock:

I believe a lot of insurance companies today are now moving... Instead of using outside counsel, a lot of them are starting to have bigger in-house corporate departments where they're paying attorneys on salary to work for them, and they're not farming out or sending out a lot of the defense files that they used to other firms. In addition, I think insurance defense practices are becoming... A lot of the firms are cutting their rates really low in order to get the business. So you see a lot of attorneys doing matters I think for a lot cheaper than it used to be done.

Mike Spivey :

So you don't see it affecting your work?

Greg Aycock:

No, I don't see it affecting my work as a plaintiff's attorney. I'm hoping it might make it easier dealing with in-house. When you deal with in-house lawyers, I'm hoping it's going to be an easier practice because if you find the outside everyone on the defense side, they're trying to run a practice too and they bill by the hours, so you may have less work on files and still be able to resolve cases much easier with in-house counsel than outside.

Mike Spivey :

So let's transition. What were sort of the vectors and triggers of deciding that you were going to start your own firm?

Greg Aycock:

I mean, I've always wanted to have my own firm and just was learning, having the experience, learning the ins and outs of day-to-day litigation, which kind of helped move that forward.

Mike Spivey :

Could you have done this out of law school?

Greg Aycock:

I think it would be tough to do this coming right out of law school, or just clerking for a judge after a year. I think it's important. I mean, having the experience of learning in the process, and just the procedural process of practice number one, dealing with clients number two, and then the operations of a law firm, the accounting and everything else involved is a total different ballgame. So I think it is beneficial to get experience with other people before doing this.

Mike Spivey :

And what's it like? What is your fee structure, and then how do you collect money from your clients?

Greg Aycock:

Well, personal injury we'll do that one first. That's a contingency fee basis. So personal injury are usually paid when you settle a lawsuit or if you're successful at trial and you prevail at trial. On the family law side, the way that family lawyers do it is I require... Once I meet with clients, I find out about their case, I require a deposit. And with that deposit clients know that a lot of those fees, they're going to have to cover their filing fees, which are very expensive. But in addition, family lawyers, we charge by the hour. And at the end of the month what I do is I prepare a very detailed invoice for my clients showing what monies I've earned from their account, and it's taken out of their trust account.

Mike Spivey :

So the cash flow looks markedly different for personal injury, which is contingency based, and for your hourly work, which is where your family work law practice is. Are there stipulations on how much you can charge for the contingency based fees?

Greg Aycock:

Yes. On the contingency fees most attorneys charged 33 and a third percent based on any awards, and some even go up to 40% based on if you're forced to go to trial, or if you have to file an appeal. And that's the standard pretty much across the board I think nationwide.

Mike Spivey :

I know you have a family, but is there a temptation to dedicate your firm to hitting the big personal injury ruling?

Greg Aycock:

Well yeah, I think everyone looks for that big case. All plaintiff's personal injury lawyers are looking for that case. I think you have a good idea a lot of times at the initial consultation with a client whether you know if it's good, if you can evaluate the case properly, how that's going to turn out. But yeah, it'd be great to get a couple of those a year. But the competition just statewide, citywide, it's very tough. There's a lot of lawyers and a lot of lawyers advertises as doing personal injuries, so it's tough to get those.

Mike Spivey :

Similarly then, let's pretend you're a new graduate with a lot of debt, knowing what you know now how would you sort of move the levers to manage paying off the debt and also raising a family and running a firm?

Greg Aycock:

I think if I would have done this when I got out of law school years ago, I think someone coming in with debt and raising a family, number one, you have to learn how to balance everything, but number two, starting a law firm on your own, it's very hard and I think it takes time. I think a person, individual, doing that would have to almost find an outside job just to balance and take care of the bills and things like that, because it is very tough. When you're paying rent, insurance and all the other fees required to run a firm, in addition to having family expenses and things like that, it's a very tough balance.

Mike Spivey :

Yeah. What's one or two aspects of practicing law vis-a-vis running your own firm that you look forward to and that you cherish most? And what are one or two of the biggest headaches involved in what you're doing on a day-to-day basis?

Greg Aycock:

If we win a case or we just do a good job, you get an outcome for a client, whether you have to resolve some, if it's a family issue, and they are very happy. And you help them, you walk them through the process, and you make them feel good about it. Not only have you helped someone but you've got a good result and you can get these people moving forward. And that's what they've hired you for, to help you do that. So that's a great day for me is when someone is satisfied, and we've also got a very good result for them, and they can start to move forward.

A bad day, what's something bad? I'm by myself so spend a lot of time entering my time entries. I do my own invoices, I write my own checks. So that's tough too because that takes a lot of time away from practicing law when you're also doing the day-to-day management of your own firm.

Mike Spivey :

Are there programs, technologies, software, people that you've invested in that make the day-to-day grind easier for you?

Greg Aycock:

Oh there are, and I highly recommend it to anyone looking to go out on their own. I use a software called Amicus Attorney, which allows me... I'm paperless, even though I do keep paper files because I save a lot of my correspondence and emails, it allows me to manage all of my files. It has a billing aspect to it, and even not even touching, using the iPads and all the programs you can get with that, there's so much that I have that helps me, because right now I don't have someone helping me, so I'm able to dictate myself and then fix all the typing.

Mike Spivey :

In general how much time do you actually spend in court versus researching, versus writing motions, versus doing all the business side of running your practice?

Greg Aycock:

It's hard to say. I'm in court a lot because I represent individuals, and especially in family law we're in court a lot, so we have a lot of court dates. We could have a lot of trials and things like that. Breaking it down is kind of tough. I would say court 40% of the time maybe, less than that. Research, 10% now. Everything else is here in the office, meeting with clients, running the day-to-day operations, and then just doing the general work, preparing letters and working on the file. So I'd break it down that way.

Host:

I Am The Law is a LawHub production. Don't forget to subscribe and rate this show on your favorite podcast app.